"Last Clear Chance" Doctrine Saves Case
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Under the doctrine of contributory negligence, an injured party cannot recover for injuries caused by the negligence of another person if the injured party is himself negligent to any degree. Under that doctrine, it does not matter how reckless, negligent or careless the defendant may be, the injured party may not recover one dime if there was the slightest negligence on his part.
North Carolina is one of only four states that still recognizes this antiquated and harsh law.
Fortunately, there is another legal doctrine in North Carolina that softens the blow of contributory negligence. This is the doctrine of "last clear chance."
Under the "last clear chance" doctrine, the injured party may recover (even though they were themselves negligent) if:
1. The defendant knew, or could have discovered, that the plaintiff was in a position of danger or peril before the injury.
2. The defendant had the time and means to avoid the injury.
3. The defendant negligently failed to use that available time and means.
The importance of the "last clear chance" doctrine was demonstrated in a recent case in which the family of a plumber who negligently failed to wear reflective gear, or put up warning signs while working in a manhole, recovered 1.5 million dollars from an oil company whose truck struck and killed the plumber.
The collision happened at 10a.m., in good weather, when the deceased plumber had pulled a manhole cover open and was checking inside to see if the sewer system had backed up. The defendant truck driver was making a left turn, crossed the centerline and hit the plumber, killing him instantly.
The truck driver claimed that the manhole cover prevented him from seeing the plumber and that there was nothing to put the truck driver on notice that anyone was working in or around the manhole. As verification of the plumber's negligence, the defendant presented evidence that the plumber's truck was parked a block away from the accident scene and that inside the truck were the plumber's reflective vest and reflective triangles that his employer required to be placed on the road. Someone from OSHA testified that the plumber's employer's rules requiring reflective vests and triangles were appropriate.
Although the jury found that the deceased plumber was himself negligent, the defendant truck driver had the "last clear chance" to avoid hitting him. The jury considered evidence that the driver behind the defendant's truck (who was also preparing to make a left hand turn) did see the plumber on the roadway in a kneeling position, holding a screwdriver and a pair of pliers. The argument was that, if the person behind the truck could see the plumber, certainly the defendant's truck driver should have seen the plumber and taken action to avoid the collision. The jury found that the defendant truck driver negligently failed to exercise his "last clear chance" to avoid the collision.
The jury returned a verdict for the plumber's family in the amount of 1.5 million dollars.